Failure to be able to give sufficient breath
samples may be refusal. State v. Schmidt 206 NJ 71 (2011)
Because defendant unequivocally consented to the breath test,
his later failures to provide the necessary volume and length of breath samples
did not render his earlier consent ambiguous or conditional. Thus, defendant
remained among those who have consented and, hence, was not entitled to reading
of the Additional Statement.
For the avoidance of future doubt and to provide consistency
of administration, the inclusion in the main body of the Standard Statement of
a notice to a DWI arrestee that the failure to provide sufficient breath volume
for a sufficient period of time will constitute a refusal to submit to the
breath test is both reasonable and salutary. Therefore, the Court recommends to
the Attorney General that the main text of the Standard Statement be
supplemented to address such instances.
